HONG KONG PROPERTY SERVICES (AGENCY) LTD. v. CHAN YUEN WA

HONG KONG PROPERTY SERVICES (AGENCY) LTD. v. CHAN YUEN WA

The court held the plaintiff was not in the business of making loans because the advance was incidental to its estate agency business, yielded no profit or interest and the plaintiff earned commission from the developer; therefore the plaintiff was not a 'money lender' under the MLO and could recover the balance. The court further found the advance would in any event qualify as an exempted transaction made in the ordinary course of the estate agency business, and exercised the s.23 discretion in the plaintiff's favour as allowing recovery was equitable.

Citation
HONG KONG PROPERTY SERVICES (AGENCY) LTD. v. CHAN YUEN WA
Parties
Plaintiff: Plaintiff; Defendant: Defendant
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
24 November 2006
Case Number
DCCJ1648/2006
Procedural Posture
Summary Judgment Application for Debt Recovery Under Order 14 R.1 / Hearing on Order 14 Application; Judgment Delivered
Outcome
Judgment for the plaintiff for HK$200,000.00 with costs to the plaintiff to be taxed if not agreed and certificate for counsel
Legal Topics
Summary Judgment, Unlicensed Moneylender Defence, S.23 Money Lenders Ordinance Discretion, Exempted Transactions (schedule 1 Part 2), Agency Commission, Triable Issues and Bona Fide Defence
Source Language
EN
Civil Procedure Contract Agency Law Regulatory Law (money Lenders Ordinance) Property Law Summary Judgment Unlicensed Moneylender Defence S.23 Money Lenders Ordinance Discretion +3 more

Case Brief

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Parties

Plaintiff

Plaintiff

Defendant

Defendant

Procedural Posture

Summary Judgment Application for Debt Recovery Under Order 14 R.1 / Hearing on Order 14 Application; Judgment Delivered

Legal Issues

  1. 1 Whether the plaintiff was in the business of making loans and therefore a 'money lender' under s.2(1) MLO
  2. 2 Whether the loan fell within an exempted transaction under Part 2 Schedule 1 of the MLO
  3. 3 Whether the court should exercise its residual discretion under s.23 MLO to permit recovery despite lack of licence

Ratio Decidendi

The court held the plaintiff was not in the business of making loans because the advance was incidental to its estate agency business, yielded no profit or interest and the plaintiff earned commission from the developer; therefore the plaintiff was not a 'money lender' under the MLO and could recover the balance. The court further found the advance would in any event qualify as an exempted transaction made in the ordinary course of the estate agency business, and exercised the s.23 discretion in the plaintiff's favour as allowing recovery was equitable.

Court Disposition

Judgment for the plaintiff for HK$200,000.00 with costs to the plaintiff to be taxed if not agreed and certificate for counsel

Orders

  • Judgment for the plaintiff in the sum of HK$200,000.00
  • Costs of this action together with costs for this application and all costs reserved to the plaintiff, to be taxed if not agreed, with certificate for counsel